Getting nation's reform back on track
Getting nation's reform back on track
Todung Mulya Lubis, Lawyer, Jakarta
History opened the door to democracy for this nation in 1945 when the founding fathers agreed to proclaim it as the Republic of Indonesia. Despite heated debate on the form and system of government and the guarantee of human rights, the spirit to build democracy was ablaze in their hearts.
A reading of the report on the meeting of the drafting of the 1945 Constitution shows an amazingly strong spirit of democracy. Unless a consensus could be achieved, the opinion gaining the majority of votes would be the opinion agreed upon.
One of the drafters, Supomo, who did not quite agree to the concept of human rights, finally accepted its formulation in the body of the 1945 Constitution. He also accepted the 1949 Constitution and the 1950 Provisional Constitution, both laden with a guarantee of human rights.
The date July 5, 1959 marked our entrance into "guided democracy," followed later by "Pancasila democracy". These two eras were an obvious negation of democracy. When democracy is followed by an epithet, it loses its significance.
Examples of how democracy had been negated are the appointment of a life-long president, the appointment of members of the House of Representatives, the disbanding of political parties, the ban on newspapers, the entry of the military into political parties, the floating mass and the application of the sole principle. Despite these signs, our leaders have denied that Indonesia is authoritarian.
An authoritarian government, however long, can never be able to run well and effectively because power corrupts and, more importantly, it has no opposition. Hence, its power will decay and eventually collapse.
Following the demands for an overhaul of the political system, this transitional government must lay the foundation for a future characterized by better democracy, participation and prosperity, to be supported by law supremacy. To this end, a new Constitution would be the primary condition -- a new social contract between the people and the state.
A group called the Forum for Democratic Reform has spelled out several core issues in this necessary overhaul:
o Constitutional and legislative reform in respect to the legislative and executive institutions, to support a democratic transition;
o Regional autonomy to guarantee inclusive political participation and effective public administration and the implementation of development throughout Indonesia;
o Redefinition of the civilian-military relationship to ensure the supremacy of elected representative agencies;
o Empowerment of civil society, either as watchdogs or as the locomotive of a democratic government;
o Intensified active participation of women in politics and society;
o A discussion on fundamental gaps and restlessness in society as a result of social economic tumult and inter-religious suspicion.
The First, Second and Third Amendments to the 1945 Constitution are not ideal but, at least, the 1945 Constitution is no longer held sacred. Several articles may be considered a response to the demand for democracy; for example, Article 7 in the First Amendment, which reads: "The President and the Vice President will be in office for five years and later can be reelected for the same office, but only for one term."
Then Article 6A (1) of the Third Amendment formulates: "The President and the Vice President shall be, as a pair, directly elected by the people."
Admittedly, the ad hoc committee, which formulates the amendment to the 1945 Constitution, seems to have captured the demand for democracy. However, if these articles are linked with other articles, we will see that the ongoing amendment to the Constitution has yet to be accompanied by a clear foundation or paradigm in Constitutional Law.
These amendments have been introduced only in a patchy fashion and many have been based on short-term political interests. The chapter on human rights in the Second Amendment clearly shows a political compromise to protect certain political interests.
Articles on the impeachment process show that the drafters of the amendment do not realize the implication of these changes. It is evident that many no longer trust the capability of the ad hoc committee of the People's Consultative Assembly (MPR) to undertake this amendment, especially because process-wise, these amendments have been made in an elitist, not participatory, mechanism. An elitist process of amendment will fail to arouse people's sense of ownership.
The demand that a Constitutional Commission be established is a demand not merely intended to avoid a political horse trade and the lack of clarity of the Constitutional Law paradigm among members of the ad hoc committee, but because every new Constitution needs a process that involves the public. In short, a new Constitution will need public support. That's why, in Thailand, South Africa and the Philippines, for example, the people were intensively involved.
In Thailand, members of its constitution commission were elected to represent each province and they worked with a number of experts in formulating the framework and the content of the new constitution. This process took place ceaselessly with a medium of communication understood by the people and not in an esoteric language.
The Thai constitutional commission worked for 240 days and despite this relatively short period, the commission could come up with a very comprehensive new constitution with over 300 articles regulating not only the executive, legislative and judicial institutions, but also human rights, the general election commission, the human rights commission, the ombudsman, the anti-corruption commission, the state audit agency and many other things.
The comprehensive nature of this new Constitution is expected to prevent constitutional devoid, a condition which will require an interpretation from the Supreme Court.
The above article is adapted from the writer's presentation at ...